Beasley v. State

426 S.W.3d 140

Vincent Eric BEASLEY, Appellant

v.The STATE of Texas, Appellee.

No. 01–11–00143–CR.

Court of Appeals of Texas, Houston (1st Dist.).

July 26, 2012.

Cheri Duncan, Assistant Public Defender, Houston, TX, for Appellant.

Alan Curry, Chief Prosecutor, Appellate Division, Eric Kugler, Assistant District Attorney of Harris County, Harris County District Attorney's Office, Houston, TX, for State.

Panel consists of Justices KEYES, BLAND, and SHARP.

OPINION

JANE BLAND, Justice.

The State charged Vincent Eric Beasley with the offense of burglary of a habitation with the intent to commit sexual assault. Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). The jury did not convict Beasley of the primary charged offense, but found him guilty of sexual assault. It assessed punishment at nine years' confinement. On appeal, Beasley contends that the trial court erroneously charged the jury that it could find him guilty of sexual assault as a lesser-included offense of the burglary charge, because sexual assault was not a lesser-included offense of the burglary charge, and the State did not charge Beasley with sexual assault in the indictment. He also complains that the charge compounded this error by instructing the jury that it could consider whether to find him guilty of the proper lesser-included offense of criminal trespass only if it could not unanimously find beyond a reasonable doubt that he was guilty of sexual assault. We reverse and remand the case for a new trial on the lesser-included offense of criminal trespass.

Background

The evidence presented at trial showed that Beasley and Iesha Bill entered into an intimate relationship beginning in 2004, one that produced two children. Beasley, however, was abusive to Bill, and a major episode of physical abuse in late 2008 finally caused Bill to end the relationship.

One evening in February 2009, Bill invited a male acquaintance to her home for a dinner date. While she was preparing dinner, Beasley called and told her he was going to come to her apartment to pick up a karate uniform he had left there. Bill responded that it was not a good time for Beasley to come over, but Beasley disregarded her. When Beasley arrived at Bill's apartment and knocked on the front door, Bill opened it slightly. Beasley confronted her, stating accusingly, “I bought you that shirt. Why are you wearing that shirt seeing him when I bought you that shirt?” He pushed the door open, walked into the apartment and introduced himself to Bill's date. Then, he pulled Bill into the back of the apartment, asking her how she could bring her date into “our house.” Bill retorted, “What do you mean our house? Do you not recall the last few months?” Beasley told her, “I painted this place and you have him here.” He then left the apartment without further incident.

Several hours later, however, Beasley returned. By about 1:30 a.m, Bill and her date had moved to the master bedroom and were engaged in sexual activity. Her date noticed a shadow cast on the floor and realized that Beasley was watching them from a prone position on the floor near the bedroom's door to the bathroom, which had another door that opened to the living room. Bill confronted Beasley, screaming, “What are you doing? Why are you here?” Beasley exclaimed, “I can't believe you let him come in here and do that. I can't believe you let him touch you.” Bill called 9–1–1, and Beasley fled. A Houston police officer responded to the call, took statements from Beasley and her date, and checked the apartment. The officer noted that the sliding-glass door was damaged and would no longer lock. It appeared to the officer that someone had recently pried the door open with a screwdriver. Satisfied that Beasley was no longer in or near the apartment, both the officer and Bill's date left.

About another hour had passed when Bill heard noises that sounded like the movement of a sliding-glass door or footsteps. She began to call 9–1–1, but before she could, Beasley grabbed her and pushed her on the bed. Beasley pinned down Bill's hands and forced his fingers into her vagina while screaming, “How could you do this, how could you bring him in the house?” The noise awakened the children in the next room, and they began to cry. When he heard the crying, Beasley fled from the apartment, and Bill called the police. After the police investigated the incident, they arrested and charged Beasley with burglary of a habitation with the intent to commit sexual assault. The indictment stated:

VINCENT ERIC BEASLEY, ... on or about FEBRUARY 11, 2009, did then and there unlawfully, with intent to commit SEXUAL ASSAULT enter a habitation owned by IESHA MONIQUE BILL, a person having greater right to possession of the habitation of [Beasley] ... without the effective consent of [Bill], namely, without any consent of any kind.

Trial court proceedings

The record does not identify the extent to which the parties participated in preparing the charge or the party responsible for the instruction on sexual assault. After reviewing the instructions, defense counsel informed the trial court that he had no objection to them. The trial court instructed the jury that if it found

beyond a reasonable doubt that on or about the 11th day of February, 2009, in Harris County, Texas, the defendant, Vincent Eric Beasley, did then and there unlawfully, with intent to commit sexual assault enter a habitation owned by [Bill], a person having a greater right to possession of the habitation than the defendant, without the effective consent of [Bill], namely, without any consent of any kind, then you will find the defendant guilty of burglary of a habitation with intent to commit sexual assault, as charged in the indictment.

Next, the charge directed the jury that unless it found “beyond a reasonable doubt, or if you have a reasonable doubt thereof, or if you are unable to agree, you will next consider whether [Beasley] is guilty of the lesser offense of sexual assault,”specifically, whether Beasley “unlawfully, intentionally, or knowingly cause[d] the penetration of the female sexual organ of [Bill], without the consent of [Bill], namely, [Beasley] compelled [Bill] to submit or participate by the use of physical force or violence.” If the jury could not find beyond a reasonable doubt or was unable to reach an agreement as to whether Beasley was guilty of sexual assault, the trial court instructed the jury to “consider whether [Beasley] is guilty of the lesser offense of criminal trespass of a habitation.”

The charge explained that “a person commits the offense of criminal trespass if he enters or remains on property or in a habitation of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so,” and that Beasley should be found guilty of criminal trespass if he entered Bill's home without her effective consent after he received notice that entry was forbidden or notice to depart but failed to do so.

Jury Charge Error

Beasley contends that jury charge error violated his federal due process rights and caused egregious harm because it erroneously allowed the jury to find him guilty of sexual assault, an offense not alleged in the indictment.

Standard of review

In determining whether there is reversible error in the jury charge, we first decide whether error exists, and, if it does, then we determine whether the defendant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex.Crim.App.1994). Jury charge error to which the defendant did not timely object is not harmful and does not require reversal unless the error is so egregious that the defendant is denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984); seeTex.Code Crim. Proc. Ann. art. 36.19 (West 2006) (“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.”).

The indictment did not charge Beasley with sexual assault

Both the United States Constitution and the Texas Constitution guarantee a defendant the right to notice of the criminal charges against him. SeeU.S. Const. amend. VI; Tex. Const. art. I, § 10. This constitutional constraint does not prevent the State from prosecuting or the trial court from instructing the jury on a lesser-included offense of the charged crime, even if the indictment does not expressly allege it. See McKithan v. State, 324 S.W.3d 582, 588 (Tex.Crim.App.2010). A lesser-included offense “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09. Thus, notice of the State's intent to prosecute the defendant for a greater offense necessarily informs the defendant, by extension, of the possibility of a conviction on the lesser offense. See Wasylina v. State, 275 S.W.3d 908, 910 (Tex.Crim.App.2009); Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App.1995). By instructing the jury that it could find him guilty of sexual assault—a crime that was not a lesser-included offense of the charged crime—Beasley contends that the trial court denied him notice and the opportunity to prepare a defense to the unchargedcrime. See Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979) (“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process”), quoted in Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001).

The State concedes that it did not charge Beasley with the offense of sexual assault in the indictment. Further,...